07 April, 2015
In the recent case of Paul Graham v Commercial Bodyworks Ltd (2015) EWCA an employer was found not liable for injuries sustained by an employee whilst engaging in dangerous 'horseplay' at work.
Mr Graham worked in a body work repair shop, he sustained serious injuries when his overalls caught on fire after his co-worker sprinkled an inflammable thinner on to his overalls and then used a lighter in the vicinity. Prior to the incident the two men had been seen "mucking around". There was no suggestion that the incident was malicious.
According to their contracts of employment, employees were permitted to decant only the approximate amount of thinner required and were then required to pour unused thinner into a waste tank. Smoking was not permitted anywhere within the workshop.
At first instance, the Judge held that the defendant was not vicariously liable. The Appeal Judge agreed, finding that although the employer created a risk by requiring its employees to work with thinning agents, the creation of the risk was not sufficiently closely connected with the co-worker's reckless act. Furthermore, the wrongful act did not further the employer's aims. The real cause of the injuries was the reckless conduct of the co-worker, which could not be said to have occurred in the course of his employment.
This case provides further clarity on the law of 'vicarious liability'. The wrongful act was not sufficiently proximate to the business/ role of the employee and it did not further the employers aims. However, where the employment involves the use of reasonable force or where the existence of friction is inherent in the nature of the employment or in the workplace, then liability is likely to attach.